Protectionism Against the Past (or: Why are Copyright Terms so Long?)

Under current law, this blog post will remain under copyright until 70 years after my death—which if I’m lucky means a century or more from the date of authorship. That’s an insanely long time when you consider that most economic studies have shown there’s almost no marginal incentive effect on production once you extend copyright terms much beyond the original span: 14 years renewable once, or 28 years total. Why would we needlessly lock away our own culture for so long?
One popular answer is the Mickey Mouse Theory. Though the effective commercial lifespan of the vast majority of copyrighted works is just a few years, a very few—like some of Disney’s iconic properties—continue to be immensely profitable for much longer. The owners of these properties then throw gobs of money at Congress, which ritualistically serves up a retroactive extension whenever these come within spitting distance of the public domain in order to protect their cash cows (or mice, as the case may be).

No doubt there’s something to that. Yet if that were the sole concern, you’d think the content industries would prefer a renewal structure that maxed out at the same term. The cost of renewing the registration of their profitable (or potentially profitable) works would be trivial for the labels and studios, but they’d also gain access to orphan works that nobody was making any use of. Our system, by contrast, seems perversely designed not just to provide extended protection for revenue-generating works, but to guarantee a minimal public domain.

Here’s an alternative hypothesis: Insanely long copyright terms are how the culture industries avoid competing with their own back catalogs. Imagine that we still had a copyright term that maxed out at 28 years, the regime the first Americans lived under. The shorter term wouldn’t in itself have much effect on output or incentives to create. But it would mean that, today, every book, song, image, and movie produced before 1984 was freely available to anyone with an Internet connection. Under those conditions, would we be anywhere near as willing to pay a premium for the latest release? In some cases, no doubt. But when the baseline is that we already have free, completely legal access to every great album, film, or novel produced before the mid-80s—more than any human being could realistically watch, read, or listen to in a lifetime—I wouldn’t be surprised if our consumption patterns became a good deal less neophilic, or at the very least, prices on new releases had to drop substantially to remain competitive.

If that’s right, there’s a perverse sense in which retroactive extensions for absurd lengths of time might actually, obliquely, serve copyright’s constitutional imperative to “promote the progress of science and useful arts”: Not by directly increasing the present value of newly produced works, but by shrinking the pool of free alternatives to the newest works. (Of course, any law restricting non-consumptive, non-commercial entertainment would have a similar effect.) If that’s true, though, it’s not enough in itself to justify the longer terms: The question is whether the marginal new content is actually worth losing universal free access to the older material. For reasons unclear to me, there often seems to be an undefended assumption that more newer stuff, whatever the quality, outweighs wider access to existing content at any conceivable margin. I’m not sure how you’d go about quantifying that, but it strikes me as wildly implausible on face.